quantum of damages in medical negligence in malaysia

During this treatment, Bolam lay in a supine position with a pillow placed under his back and his lower jaw was supported by a mouth gag. This proved to be unsuccessful and on 14/7/82, the first respondent performed a manipulation or closed reduction procedure under general anaesthetic to unlock the locked facet joint. In determining whether a doctor has breached the duty of care owed to his patient, a judge will not find him negligent as long as there is a respectable body of medical opinion, logically held, that supports his actions. The Court has defined risk as being material, if, “in the circumstances of a particular case and if warned of the risk, a reasonable person in the patient’s position, would be likely to attach significance to it or the risk is also deemed material if the medical practitioner is or should reasonably be aware that the particular patient would be likely to attach significance to it, had they been warned”. To prove the medical negligence, a patient must establish four ... the extent and quantum of the loss that has followed from the breach of duty is recoverable in law (Islam, 2013). Instead, the plaintiffs had attacked the theory advanced by the defendants’ as to the likely cause of the deceased’s death seeking thereby to show that their charge of negligence must be correct. In Malaysia, such a pari materia provision is found in Section 12(1) of the Civil Law Act 1956. In a public lecture entitled, “The Standard of Care in Medical Practices: Has the Pendulum Swung in favour of the patients?” delivered by Prof  Denis A. Cusack of the School of Medicine and Medical  Science, University College of Dublin, Ireland, in Kuala Lumpur on 16/3/07, Dr. Cusack considered the legal standards for due care and skill of the medical profession on its diagnosis and treatment of patients and how this is balanced with the patient’s0 right to know as expressed in the law relating to disclosure of risks in such diagnosis and treatment following the decision in Foo Fio Na. Some very important principles (as established in Rogers v Whitaker (followed in Foo Fio Na)) were (i) only material risks of injury arising out of treatment or surgery needed to be disclosed to a patient; (ii) the materiality or non-materiality of a risk often requires expert evidence; and (iii) the therapeutic privilege  allowed a surgeon to withhold disclosure of a material risk in the best  interests of a patient. The trial judge had properly assessed and weighed all the evidence before her, particularly the opinion of the expert witnesses on the probable cause of the appellant’s paralysis, before arriving at her decision. Medical diagrams and a glossary of medical terms assist in researching injuries; Quantum conversion tables to assist in finding comparative awards in the Quantum of Damages in Bodily and Fatal Injury Cases; Quick referencing system for tables point the user to the volume and page of each case, providing quantum figures updated to 2019 Both parties tendered medical evidence and the psychiatric and psychological experts participated in a joint conclave and produced a joint report prior to the trial. To appreciate the Bolam Test which is the locus classicus to determine liability for medical negligence in England, it is necessary to first consider the facts of the case itself. Generally, in a medical malpractice action in Ontario, damages are meant to compensate a person for the injuries suffered as a result of medical negligence, attempting to put them back into the position they would have been in had the negligence not occurred. The subsequent decision of the Australian High Court in Naxakis v Western General Hospital (1999) has confirmed that the Bolam Principle does not apply in Australia in the case of advice, diagnosis or treatment. Friern Hospital’s alleged negligence can be summarised into the following three categories: Bolam testified that he was not given any warning as to risks, nor asked whether he would not undergo treatment as there is a one in 10,000 risk involved. Medical Negligence Claims in Malaysia ... Medical records are one of the most essential documents for a plaintiff in medical negligence claims if the plaintiff is the patient. Malaysian law on damages for personal injuries and causing death is a dynamic subject, judging from the number of reported judgments each year. The appellants were the personal representatives of the estate of the deceased. * This paper was delivered by Mah Weng Kwai on 9.5.2012 at the Annual Scientific Congress 2012 organised by the Royal Australasian College Of Surgeons held at the Kuala Lumpur Convention Centre from 6-10 May 2012. In the course of this treatment, Bolam sustained severe physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each side which were caused by the head of the femur on each side being driven through the acetabulum or cup of the pelvis. Unfortunately, this procedure too failed as the appellant became paralysed the day after the operation. Anxiety arising from medical negligence claims represent a disturbing aspect of the current medical practice1. There the court stated that the court was not bound to find for a defendant doctor simply because a body of experts testified in his favour. No relaxant drugs were administered to Bolam prior to the treatment. The learned Judge further held that the decision of the Federal Court in Foo Fio Na represents the law on this subject as applied today. The Bolam Test has been approved by the House of Lords in a number of cases including Whitehouse v Jordan (1981) and Maynard v West Midlands Regional Health Authority (1985) on the issue of diagnosis and treatment by doctors. He said the court awarded the amount after hearing testimonies on the quantum of damages from the parents and three medical experts. It is likely that the claimant had health concerns prior to the negligence, hence seeking treatment in the first place. 1. The report quotes Simelane-Zulu as saying that the department was also in the process of establishing a panel of … See also Potgieter, Quantum of Damages Quick Guide Juta 2014, Visser and Potgieter,The Law of Damages Juta 3 rd Edition 2012 and Koch Damages for Lost Income. That said, it would mean that the decision in Foo Fio Na is only limited to the giving of advice on material and inherent risks in proposed treatments and that the  Bolam Test still applies in relation to diagnosis, treatment and management of a patient. Introduction . Tim Newman, clinical negligence barrister at No5 Chambers, explores how the report will affect legal practitioners. Feel free to contact us for complimentary legal consultation. What is “retention sum” commonly referred to in construction contracts? Medical negligence lawsuits are becoming more prevalent as people seek to protect their rights in regards to medical malpractice. The consultant psychiatrist did not warn Bolam of the risks involved, one of which was the risk of fracture. In tort law, a remedy is paid in the form of monetary compensation (damages). Failure to give Bolam a warning of the risks involved in electro-convulsive therapy so that he might have had a chance to decide whether he was going to take those risks or not; Failure to use any relevant drugs which, if used, could have excluded the risk of fracture altogether; That if relevant drugs were not used then at least some form of manual control beyond shoulder control, support of the chin and placing a pillow under the back should have been used. When liability is established, loss must be proven for the Courts to decide on the quantum of the damages. Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 said that a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. Section 6(1)(a) Limitation Act 1963 specifies that you will only have 6 years from when the damage occurred to sue. For general guidance on damages, see Practice Note: The remedy of damages—general principles. She brought a claim against the first and second appellants/defendants for medical negligence in, inter alia, failing to advise the deceased of the risks of acute pancreatitis and acute respiratory distress syndrome (‘ARDS’) prior to the operation by the first appellant on the deceased to remove kidney stones that were causing biliary obstruction. To resolve the uncertainty a review of the law on medical negligence needs to be undertaken to clear the lingering doubts. The Bolam Principle was reviewed in the case of Dr. Khoo James & Anor v Gunapathy d/o Muniandy (2002) when in a strongly worded judgment the then Chief Justice Yong Pung How had this to say: “This is why the legal principle in Bolam v Friern Hospital Management Committee restrains the judiciary from treating medical experts as they would any other. Siti Norma Yaacob FCJ (later CJM) in delivering the judgment of the Federal Court distinguished Foo Fio Na from Bolam in that:-. ��덺�}K/�u��nA&���w�Z>��ܤr�_/U���0����� W�x����T�9��L�PM1u��٦o� rdw����h�~�N֩��M�T��FS�6.��J��ز�� ��R�4su$,f�4\؀1}Ѝ��8j�Q�Rl�� ��Ӯ��A�¥8 �CD�e���. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. 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